Friday, January 25, 2013

Back in January of 2012, President Obama made the decision to go ahead with three recess appointments to the National Labor Relations Board, even though the Senate was not technically in recess, but rather was in a pro-forma session (which consists of the Senate being called to order then dismissed by gavel every three days, even if the bulk of the Senate is not present). Such sessions are generally business-free since a quorum (51 Senators) is unlikely to be present.

The White House has argued that a pro-forma session is a procedural "trick" and does not qualify as a part of a real session, thus the President is free to ignore it, for purposes of recess appointments. But today, the U.S. Court of Appeals for the District of Columbia Circuit ruled against the Administration, finding that the three appointments violated the Constitution because--specifically--they were not recess appointments, as outlined in the Constitution, proper. According to the D.C. Circuit such recess appointments can only occur in between official sessions of Congress, intersession periods, not intrasession periods.

There is a great deal of confusion--intentional or otherwise--on the ruling, on its basis and what it means. Some--like the folks at MediaMatters--have it all wrong. They seem intent on pointing out that intrasession appointments have been fairly common since World War II--which the decision of the D.C. Circuit does indeed note--and thus this decision represents a radical move, as it apparently isn't about pro forma sessions, at all.

This is an incorrect reading of the decision. An intrasession period is--by definition--a break during a called session of Congress. Traditionally, each Congress meets for two sessions, one each year, for this is the minimum number of meetings mandated by the Constitution in Article I, Section 4:

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

The Twentieth Amendment subsequently changed the above date to January 3rd. Thus, Congress must be called into session once each year. But when does such a session officially end? Simple, when Congress votes to end it. To do so, it (each House, actually) votes for an Adjournment sine die (meaning an adjournment without a designated date of return). But note this: there is no limitation on how many individual sessions a particular Congress can hold, as long as it has an adjournment sine die. Rather than hold multiple sessions a year, Congress has opted to simply adjourn for breaks of various lengths at different times during the year. Such breaks could be--and still often are--quite long, particularly during election years (got to have time to campaign, after all).

Thus, intrasession periods have ranged in length from a handful of days to multiple weeks. In the more distant past of the nation--prior to World War II--such periods were almost never used by the President to make recess appointments (three times over at least 80 years). And that's because they were understood to not be the periods for doing so, per the Constitution. As the decision rightly notes, the power of the President to appoint lackeys to federal office was seen as a dangerous one; it was a power to be checked, to be curbed, to be limited. At the same time, the Framers recognized that there would be times of great emergency. This is the sole reason for allowing recess appointments, not as a means of getting around an obstinate Congress.
But after World War II, intrasession appointments became more and more common. Still, they were only made during extended intrasession periods, usually ones of ten+ days (if not considerably more). In 1992, the Bush Administration sought advisement on whether or not a current intrasession period was of sufficient length to make a recess appointment. The legal opinion received from Justice:

This memorandum responds to your request that this Office determine whether the President may make appointments under the Recess Appointments Clause to the Federal Housing Finance Board ("FHFB"), the Legal Services Corporation ("LSC"), and the office of the Chief Executive Officer of the Resolution Trust Corporation ("RTC") during the current recess of the Senate, which began on January 3, 1992 and will end on January 21, 1992. We conclude that he may.

Common to all of these appointments is the issue whether the President may make recess appointments during an intrasession recess of eighteen days. (1) Article II, Section 2, Clause 3 of the Constitution provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The longstanding view of the Attorneys General has been that the term "recess" includes intrasession recesses if they are of substantial length. Attorney General Daugherty held in 1921 that the President had the power to make a recess appointment during a twenty-eight day intrasession recess. He explained that recess appointments could be made during any recess of such duration that the Senate could "not receive communications from the President or participate as a body in making appointments." 33 Op. Att'y Gen. 20, 24 (1921) (quoting S. Rep. No. 4389, 58th Cong., 3d Sess. 1905; 39 Cong. Rec. 3823). According to Attorney General Daugherty, while "the line of demarcation cannot be accurately drawn," id. at 25,

...the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor of the validity of whatever action he may take.

Thus, the Administration then believed--and it was a generally accepted belief across party lines--that intrasession appointments were available only when the Senate was out of session for an extended period of time. To make such an appointment during a brief break would be unseemly and violate the trust between President and Senate. Indeed, one could argue that the Senate was essentially allowing intrasession appointments during long breaks as a courtesy; it could have pushed the issue and denied the validity of such appointments, forcing the President to only use intersession periods.

But that's the trouble with courtesy; give people an inch and they take a mile. Because during the next Administration--that of Clinton--the "extended" time for an intrasession appointment was whittled down to just three days. Why three? Well, because if it was two, a President could theoretically make a recess appointment over the week-end, which would so obviously violate the spirit of the Constitution as to be a joke.

But that is the essential reason for the D.C. Circuit's decision, why it decided all intrasession appointments are invalid: there is no definitive length to limit such appointments. Theoretically, a President could make a recess appointment while the Senate was adjourned for lunch or after it adjourned at the end of a day. For such periods are by definition intrasession ones. The D.C. Circuit recognized this; President Obama specifically made his appointments after a pro-forma session had ended, not during it. And his legal advisers specifically argued that this was an intrasession period and therefore it was in the President's purview to make a recess appointment.

The D.C. Circuit, with its decision, is emphatically putting an end to this game-playing, this intentional subversion of the Constitution. It's decision is not radical in the least; it's merely a return to form, so to speak. And really, everyone in Congress and the Administration knows this, they're all fully aware of what they were doing and why it was wrong. Because as has been pointed out, Harry Reid specifically claimed pro forma sessions were sufficient to prevent recess appointments by Bush back in 2007:

In the interests of this nation and despite the stubbornness of the President, I went ahead confirmed over 84 of the President’s nominees in December. But I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made.

And Obama--along with other Democrats in the Senate--backed this move to the hilt. But that's the thing to remember: Congress is playing games, too. Pro forma sessions should never been used to prevent recess appointments. Reid was wrong then, Boehner is wrong now (by refusing to agree to ending a session, thus forcing a pro forma session down Reid's throat). But Obama is no less wrong, nor was Clinton, in arguing that short intrasession periods allow recess appointments to be made. They both knew they were wrong, but they just had to push the envelope. And this is what they get: no more intrasession appointment for anyone. Period. It's like disciplining small children, isn't it?

Interestingly enough, the Liberal Lion himself, Ted Kennedy, has weighed in on this issue multiple times. His position is worth noting, if only to hear the blood drain from the cadre of Obama fanboys in the media and elsewhere (my boldface):

The
panel below included a judge whom the President appointed
without Senate confirmation just one business day before the
Senate reconvened after a ten-day, holiday adjournment during a
session of Congress...

The Recess Appointments Clause authorizes the President
“to fill up all Vacancies that may happen during the Recess of
the Senate, by granting Commissions which shall expire at the
End of their next Session.” Petitioner and amicus contend that
“the Recess” refers to the legislative break that the Senate takes
between its “Session[s].” By contrast, the Government now
advances the remarkable view that the phrase “the Recess”
means any suspension or remission of Senate business. See U.S.
Miller Opp. 18, 21; see also Brief for the Intervenor United
States Supporting the Constitutionality of Judge Pryor’s
Appointment as a Judge of This Court, Stephens v. Evans, No.
02-16424 at 7 [hereinafter “U.S. Stephens Br.”]. Under this
novel reading, the President may make a “recess” appointment
whenever the Senate takes any intra-session break, even for a
period as short as a half-hour.

That's right, according to Ted Kennedy the only time a President can make recess appointments is during an intersession period. And like the D.C. Circuit, Kennedy recognizes that allowing intrasession appointments means, in the end, that the President can make a recess appointment during any break in a session, be it a lunch break, or a break for the weekend, or even a bathroom break. One can only conclude that Kennedy would have been in complete agreement with the D.C. Circuit on this issue. But do you think MediaMatters will tell you that?